State Consumer Disputes Redressal Commission
Arvind Bhardwaj vs Heritage Hospital Through Director & ... on 13 March, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/57
Instituted on : 18.10.2016
Shri Arvind Bhardwaj, Aged 28 years,
S/o Shri Baratu Bhardwaj,
R/o : House No.237, M-II, Sector - 1,
Dindayal Upadhyay Nagar,
Raipur (C.G.) ... Complainant.
Vs.
1. Heritage Hospital,
Through : Director, Devendra Nagar,
Raipur, District Raipur (C.G.)
2. Dr. Sanjay Pandey, (Ortho - Specialist),
C/o : Heritage Hospital,
Devendra Nagar,
Raipur, District Raipur (C.G.) Pin 492001
3. Dr. Nishchal Tiwari (Gastrologist),
C/o : Heritage Hospital,
Devendra Nagar,
Raipur, District Raipur (C.G.) Pin 492001
4. Dr. Amir Hussain (Pathologist),
C/o : Heritage Hospital,
Devendra Nagar,
Raipur, District Raipur (C.G.) Pin 492001
5. Shree Balaji Superspeciality Hospital,
Through : Director, Dubey Colony, Mowa,
Raipur, District Raipur (C.G.) .... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Saurabh Shukla, Advocate for the complainant.
Shri Shishir Bhandarkar, Advocate, present with O.P. No.2 Dr. Sanjay
Pandey and on behalf of the O.P. No.1 Heritage Hospital.
Shri K.K. Shukla, Advocate present with O.P. No.3 Dr. Nischal Tiwari.
Miss Praveen Arora, Advocate present with O.P. No.4 Dr.Aamir Hussain.
Shri R.K. Bhawnani, Advocate for O.P. No.5 Shri Balaji Super Speciality
Hospital.
// 2 //
ORDER
Dated : 13/March/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
(1) The OPs be jointly and severally directed to pay a sum of Rs.7,13,270/- (Rupees Seven Lakhs Thirteen Thousand Two Hundred Seventy) which was spent by the complainant in his treatment, along with interest @ 12% p.a. p.a. from the date of accident till realization.
(2) The OPs be directed to pay Rs.12,000/- (Rupees Twelve Thousand) per month for total 35 future years due to amputation on account of negligence of the OPs, total Rs.50,40,000/- (Rupees Fifty Lakhs Fourty Thousand).
(3) The OPs be directed to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs) towards physical and mental agony, Rs.5,00,000/-
(Rupees Five Lakhs) for Unfair trade practice and negligence in treatment, total Rs.10,00,000/- (Rupees Ten Lakhs). (4) The OPs be directed to pay additional amount for other agony and unfair trade practice and expenses.
(5) The OPs be directed to pay cost of litigation, advocate fees and other expenses, as this Commission deems fit.
// 3 //
2. Briefly stated, the facts of the complaint of the complainant are that the complainant belongs to a middle class family, who has completed B.E. Engineering Study and he is only earning member in his family. The complainant met with an accident on 26.04.2015 when at morning near about 10.00 A.M. at Village Kasdol, Post Kachanda, Kasdol (C.G.), he was coming to Raipur from his village by his motorcycle bearing registration No.C.G.04-KB/1117, all of sudden at Village Hardidih, the complainant dashed with a flock of cow, due to which he fell from motorcycle, in which the complainant sustained injuries in knee of left leg. The complainant was immediately taken to Primary Health Centre, Kasdol for primary treatment where after primary treatment, the complainant was advised to go to Raipur (C.G.) for treatment. The complainant was immediately brought to Raipur by Car and he was got admitted in O.P. No.1 Heritage Hospital at 5.00 P.M. in presence of his sister Bhavna. On 26.04.2015 the complainant was got admitted in Heritage Hospital, Raipur and the preliminary tests, X-ray, ECG, blood test and other various tests were done by the O.P. No.2 and he informed that in the knee of left leg, there is minor fracture, for which operation is required to be done and plate would be inserted and after some days, the complainant would become healthy. On being information given by the O.P. No.2 to the complainant and his family regarding injury, treatment and operation, they had given their consent for treatment and thereafter on 27.04.2015 at 9.00 A.M. the O.P. No.2 conducted operation/surgery of knee of left leg of the complainant. On 27.04.2015, when the complainant became // 4 // conscious, he made complaint to the O.P. No.2 and staff regarding pain in the finger of the left leg and that there is no movement in it, but they told that it is the immediate effect of the operation and after some days it will become automatically alright. On 28.04.2015 also the complainant made complaint to the O.P. No.2 regarding pain in the finger and that there is no movement on it and also informed that the bandage is becoming black, but he told that for waiting some days and after opening the bandage, he would check. After operation, on 30.04.2015, the staff of O.P. No.2 hospital opened the bandage and found that from the place where injury sustained and operation was done, continuously pus was oozing out and from the place of injury sustain 2 stitches is also opened and at the above place there is problem of cavity and other problem, due to which at that place, there was no healing. The complainant and his sister Bhawna had immediately contacted to the O.P. No.2 and on making request, then the staff of the hospital informed that the O.P. No.2 will be out of Raipur (C.G.) for 4-5 days from 29.04.2015. The complainant and his sister Bhawna requested the OPs to immediately call any other Orthopedics Surgeon or any other concerned doctor and to examine that there is oozing of pus at the place where operation was done, there is no healing of the injury, examination of swelling in the leg, and for sewing of the two stitches , which were opened, but the OPs did not give any heed to their request and again cleraned the wound and bandage was done, which shows the negligence of the OPs. From 30.04.2015, the complainant and his sister Bhawna continuously and several times made // 5 // complaints regarding negligence committed while conducting operation, kept open the stitches and regarding other negligence and also several times requested for examination and treatment of the complainant by another expert in absence of the O.P. No.2, but the OPs did not pay attention to their requests. Even the complainant was not examined by Dr. Kishore Jha, Neuro Surgeon, who is present in the hospital. The staff of the O.P. No.1 hospital told that the above case is of O.P. No.2 and the same will be handled by him, whereas the complainant was continuously writhed from pain. The O.P. No.1 & O.P. No.2 ignored the request continuously made by the complainant and also ignored the pain suffered by the complainant and committed negligence in treatment and instead of treating properly, the O.P. No.3 Dr. Nischal Tiwari was deputed, for conducting round of the Hospital, who is a Gaestrologist. The complainant several times requested O.P. No.3 to treat the place of injury sustained, but he did not treat him. The O.P. No.2 came on 05.05.2015 and examined the complainant, there was collection of pus and smell is coming out. The stitches at the place of injuries was opened, due to which the place of injuries became black. After examination, it is found that the condition of the complainant is critical, therefore, the O.P. No.2 told that operation is to be done. The sister of the complainant is having information regarding medical science, on her request on 05.05.2015 the pus was sent for culture test and it was informed that report would be received after 3-4 days. The complainant and his sister requested for conducting pus culture test so that seriousness of the // 6 // injury can be diagnosed at the earliest and proper treatment can be done, but above pus culture test report was issued by the O.P. No.4 without any proper test, on 05.05.2015, whereas the O.P. No.2 had told that 3-4 days will be taken for issuance of Pus Culture Test. On 05.05.2015, the O.P. No.2, did not examine the injury and its seriousness, did not conduct operation, but he told the complainant that within 2-3 days his leg would become alright but on 06.05.2015 and 07.05.2015, pus was continuously oozing from the place of injury and foul smell was coming out. There was continuous pain in the leg of the complainant and there was no movement in leg of the complainant, which shows that there is negligence in the treatment done earlier. On 08.05.2015, the O.P. No.2, when the injury sustained was not became cured, pain was not removed and there was continuously pus was oozing out, foul smell was coming out, there is swelling, and he consulted with Dr. Kishor Jha, Neuro Surgeon regarding nerve of leg, who advised for CT Scan, whereas on 30.04.2015 in the absence of the O.P. the complainant requested for advice, which clearly shows negligence in treatment of the complainant. On 09.05.2015 at afternoon the injuries was not cured and pain was not removed, therefore on the advice of Dr. Kishore Jha, again operation was conducted but in spite of conducting operation, there was problem of oozing pus, smell, swelling and there is continuous pain at the place where operation was conducted. After conducting operation by the O.P. No.2, when the dressing was opened, the pus was oozing out, there was pain, and the entire wound became back and started decaying due to // 7 // which on 12.05.2015, Dr. Asif Meman, who is a Plastic Surgeon was called and he again conducted operation but after said operation, the leg of the complainant became lifeless. On 12.05.2015, Dr. Asif Memon, who is a Plastic Surgeon, informed the sister of the complainant that the condition of the leg of the complainant has become critical and there is no possibility of curing the leg. The O.P. No.2 also accepted the same. The O.P. No.1 to 4 continuously committed negligence in treatment of the complainant and the complainant was got admitted in the Hospital for 17 days and 3-4 operation was conducted due to which he suffered financial loss of Rs.71,842/- and he continuously writhed from pain and thereafter he lost his leg for which the OPs are liable. On 12.05.2015, after operation, at afternoon, the complainant talked with Dr. Ashif Memon and thereafter his father think it better to leave the hospital and on 12.05.2015 at 11.00 P.M. the complainant was got discharged from O.P. No.1 hospital and he was got admitted in Shri Balajee Hospital, where it was informed that due to negligence of the treating doctor, pus was continuously oozing out and the leg of the complainant became decayed and colour of the leg became black and it was assured that for some days the complainant will be kept in the hospital and it was assured that his leg would be saved but lateron it was informed that due to negligence committed in treating the complainant earlier, there is possibility of spreading infection in the leg and other parts of the body and there is no possibility of curing his leg in future due to which his leg is required to be amputed, for which the OPs are liable. The complainant was got admitted in the O.P. No.5 for // 8 // treatment on 13.05.2015, where on 14.05.2015 operation was conducted and it was tried to save his leg, but as his leg was not cured, therefore, on 18.05.2015, the operation was conducted and his leg was amputed and on 26.06.2015 the operation was conducted and leg was sewed and on 09.06.2015, the complainant was discharged in which Rs.5,25,388/- was spent. After three months, again Indolight leg was fitted in which Rs.1,16,400/- was spent, for which the OPs are liable. After occurrence of accident on 26.04.2015, the complainant was admitted in the O.P. No.1 Hospital, where continuously negligence was committed in his treatment and attention was not given in his problem and complaint, the concerned doctor also left the patient without completing the treatment and gone outside and he also did not engage any Ortho Specialist for taking care of the complainant due to which the condition of the complainant deteriorated. The complainant continuously demanded the treatment papers from the O.P. No.1 to O.P. No.4, but the documents were not provided. On the basis of demand made on 24.10.2015, incomplete information was given. The complainant is belonging to a middle class family amily and is working in Sanjeevani Life Science Hospital, Durg - Rajandgaon and is earning income and on his income his family is depend for their livelihood. Due to negligence committed by the OPs during treatment, the complainant had lost his leg for ever due to which he became handicapped. The complainant sent legal notice to the OPs on 18.07.2016 and demanded Rs.7,13,270 which was spent in his treatment and other compensation Rs.60,40,000/-, but inspite of receiving the notice, // 9 // the OPs did not pay the compensation and did not given reasonable reply. Hence this complaint.
3. The O.P. No.1 & O.P. No.2 filed their written statement and averred that the complainant was admitted in the Hospital on 26.04.2015 by his sister Bhavna Mishra with the history of road traffic accident. The complainant was admitted in the hospital with history of road traffic accident and no history of Hypertension, Diabetes Mellitus, Asthma and Sickling. After the admission the complainant was examined by O.P. No.2 and it was found that the complainant had suffered fracture of condy1e of tibia and required surgical intervention for its treatment; and after counselling about the nature of operation and possible post operative complications; and after pre-operative blood and other tests, an operation by plate screw fixation was planned for 27.04.2015. Prior to the operation, the complainant was thoroughly checked up by the physician Dr. R.K. Patel, and on his finding all the parameters within permissible limits, he declared the complainant fit for operation and the complainant was operated upon on 27.04.2015 and as per pre-operative planning open reduction of fracture and its fixation by plate and screw was performed successfully after obtaining informed written consent. Though the operation was successful but the O.P. No.2 had never given any assurance of complete recovery to the patient or his attendant. It is submitted that any surgery minor or major possesses some degree of risk in it as the human body reacts differently and unexpectedly to the particular type of // 10 // treatment which was property explained to the complainant and his sister attendant prior to the surgery, who had given consent for the surgery voluntarily from the complainant's side, after knowing about all the possible risks including infection. After the operation on 28.04.2015, the complainant had not developed complaint of pain and lack of movement in his left toe. As per the records submitted along with the complaint, the contentions raised by the complainant in this regard are not found to be correct. All the necessary investigations and pre-operative diagnostics were carried out and thereafter the consent was taken prior to surgery. After performing surgery the recovery was uneventful. On 28.04.2015, regular post operative rounds were taken and the patient's general condition and operative site bandage was medically found to be satisfactory. The complainant had mainly got operative site pain for which painkiller and antibiotics were given. His toe movements were normal and the bandage over his operative site had blackened due to combination of soaked betadine and blood which was quite usual feature in a case of patient who had just gone under the surgery. On 29.04.2015 the complainant was examined and found to have swelling on the operation portion of his left leg and accordingly dressing was done. Next day i.e. on 30.04.2015 it was found that the wound had minimal serous discharge. Therefore, to see for any pus/infection inside, two stitches were removed and it was found that there was no pus inside. The stitches therefore, were purposefully left open to drain out the serous discharge and wound was dressed. It was also found that there was no fever which // 11 // suggested that the wound had no infection. The outstation visit of the O.P. No.2 was pre-planned , the same was informed to the patient and his relatives during the course of treatment. It is also the fact that the O.P. No.1 had proper substitute arrangement for further treatment in absence of the O.P. No.2. Due to outstation visit of O.P. No.2, the life of complainant was not put in danger. It is also submitted that during the visit, the patient was not left unattended. Dr. Nischal Tiwari was looking after the patient in the period when the O.P. No.2 was out of station. Dr. Nischal Tiwari being a surgeon himself was competent enough to take care of the complainant and his postoperative would of orthopaedic implant surgery. The complainant was infact properly looked after and managed efficiently by doctors of O.P. No.1 namely Dr. Nischal Tiwari, who took daily rounds of the patient and inspected the wound. Till Second of May, 2015 the serous discharge had reduced but on 03.05.2015 Dr. Tiwari noticed that the patient was having low grade fever and had some abnormal discharge. He then immediately on 03.05.2015 asked for getting pus culture and sensitivity test done. As growth of bacteria in culture and its sensitivity to antibiotics takes at least two days for its report, Dr. Nischal Tiwari while waiting for pus culture and sensitivity report, managed the patient symptomatically and got the daily dressing done. It was Dr. Tiwari, who in absence of O.P. No.2 had advised the purse culture test. Sample for which was taken on 03.05.2015 itself. No medical negligence was done by the O.P. No.1 and O.P. No.2. On 05.05.2015 when the O.P. No.2 returned from his visit and resumed the // 12 // charge of the patient, by then pus culture and sensitivity report had already come on 05.05.2015 and suggested the Grame - ve Bacteria Klebsiella growth, which as per medical literature develops inside the intestine of a human body. Dr. Pandey, therefore, immediately changed the antibiotic as per the sensitivity report and wound alternate stitch removal was performed so as to facilitate the drainage of pus, which was per common procedure while dealing with such a situation. It is submitted that on 7th May, 2015 due to free drainage of pus, discharge was reduced significantly but smell was present and patient had low grade fever therefore, dressing was done. On 08th May, 2015 the toe movement was reduced and dorsalis paedis pulsation could not be felt due to edema. An urgent colored Doppler to see for the circulatory status of the limb was ordered. The report showed cellulitis changes with no flow in Anteror Tibial vessels but Normal Flow in Posterior Tibial vessels, which was sufficient for viability of tissue in foot. Hence no immediate surgical intervention was required. However on 8th May, 2015 itself, the patient had developed headache for which opinion of Dr. Kishore Jha (M. Ch. Neuro Surgeon) & CT Scan head was asked for. But as the complaint of headache got relieved the other day, the opinion and CT scan was defrred to save expenses. On 9th May, 2015 after explaining the condition of patient to the attendants and the patient and obtaining a well informed consent, the patient was taken up for surgical debridement procedure and thorough debridement of anterior compartment was performed. The necrotic muscle of the whole Anterior compartment // 13 // were excised which were in accordance with protocol for treatment prescribed for the condition the complainant was faced with. On 10th May, 2015, since the fever of the patient continued, tests for other causes of fever were done (Test for Malaria, Test for Typhoid etc., which were negative). On 11th May, 2015 also, since the patient had fever with foul smell discharge from wound, surgical re-debridement was planned on 12.05.2015 and this time, Plastic surgeon Dr. Asif Memon, (M.S., M.Ch.) was called for wound debridement, which again was as per protocol and common procedure. Dr. Asif Memon found that the wound still had pus discharge. Pus was there in superficial muscles of Posterior compartment also, but the drop muscles were intact. O.P. No.2 Dr. Sanjay Pandey and Dr. Asif Menon counselled the patient's father and other attendants about the condition of the patient and his wound and assured them of the best possible care in the hospital. Doctors advised them of the best possible care in the hospital. Doctors advised them to continue the treatment in the hospital, so that best care could be given to the patient because the patient's limb condition was still salvageable as the limb was warm, having circulation with toe movements of Plantar Flexion, but patient's attendant refused to continue the treatment in the hospital, despite the repeated advice and counselling of the attendants by the Doctor's team. As the patient's limb was warm and having circulation with toe movements Plantar Flexion, its condition was still salvageable. The question of expressing such opinion, therefore, did not arise. It is thus unfair to allege the O.P. No.1 and O.P. No.2 of any medical negligence.
// 14 // The patient was treated in accordance with the prescribed procedure for his ailment during his admission from 26.04.2015 till the date (17 days) patient left the hospital. On 12.05.2015 itself, in the night around 08.00 PM, the complainant's attendants's namely his father and sister took him away from the hospital AGAINST MEDICAL ADVICE, despite repeated counselling and advise to continue the treatment in Heritage Hospital. It is pertinent to mention that till the last day of the patient in hospital, the patient's affected limb was viable warm; having circulation flexion of the toes, and till that day, there was no indication for his limb to be amputed. The complainant left the hospital voluntarily only after doing signature on Leaving Against Medical Advise from a separate LAMA consent, which makes it crystal clear that the O.P. No.1 and O.P. No.2 did their duty with utmost care and caution therefore there is no question of medical negligence or deficiency in service. It is only now that when the complainant filed treatment documents of Balaji Hospital, the O.P. No.1 and O.P. No.2 have come to know that the complainant after leaving O.P. No.1, shifted to Balaji Hospital, for treatment on 12.05.2015. The complainant has infact not been able to prove any negligence against the O.P. No.1 & O.P. No.2 by way of any evidence of a Medical Expert or Medical Literature as to what they did, which was not expected of a Doctor of average skill or they did not do what was expected of a Doctor possessing ordinary skill. In absence of any proof thereof, no case of medical negligence is made out against the O.P. No.1 & O.P. No.2 by the complainant. To compare with the treatment given in Balaji Hospital, it // 15 // is pertinent to mention here that as per the treatment papers of Balaji Hospital, the complainant was admitted with no history of Hypertension, Diabetes, asthma and allergy and was put on medicines which were already being given in Heritage Hospital. It is however evident from treatment papers of Balaji Hospital, that there also in the line of treatment was similar to that of Heritage Hospital. In Balaji Hospital, debridement was done on 14.05.2015 and the patient was treated with antibiotics. But the situation aggravated leading to amputation of left leg on18.05.2015. It is however worth mentioning here that the line of treatment in both the hospitals were similar, the O.P. No.1 & O.P. No.2, therefore, cannot be held guilty of any medical negligence. The post operative infection is documented complication of any surgical procedure. Once the infection is suspected by the doctor, the standard action is to open up few stitches to see for deep infection, perform regular dressing, send pus for culture and sensitivity test, administer the antibiotics drugs according to sensitivity report and when even with this the infection is not controlled, the surgical wound debridement is done. This standard protocol was followed by the hospital and staff in case of complainant also. Klebsiella bacterial post operative infection usually occurs endogenously i.e. from patient's gut oral mucosal lining and skin flora, which sometimes does not come under control despite best efforts. The preventive preoperative Antibiotic coverage which was given is standard regime of the Orthopedic Surgery patient of the hospital and is targeted to the commoner culprit bacteria responsible for post operative wound // 16 // infection, i.e. Staphylococcus, MRSA, Streptococcus, Pseudomonas etc. The O.P. No.1 & O.P. No.2, therefore, cannot be blamed. Due reply was given by the hospital whenever any information was asked for. The reply to the queries of Ms. Bhavna Mishra was denied because the details of the patient could only be given to the patient on his request, if he is alive or to the next to kin if he is dead. A point wise reply to the queries of the patient was handed over on 12.12.2015. Similarly, on submission of affidavit that the complainant has lost the original hospital bill and that he requires duplicate bill, same was immediately issued on 18.02.2016. The O.P. No.1 & O.P. No.2 did not receive any E-Mail regarding the request of having a copy of the case sheet. The whole hospital records were handed over to the Police when asked for by the Police competent authority on 15.01.2016. Later on the reply by the hospital doctors to the notice of complainant's lawyer was also given in time on 25.07.2016. The total hospital record papers were handed over to the Police. It is surprising however, that few of the papers of hospital records, specially the high risk consent papers and the paper of leaving against medical advise separate consent and the duplicate hospital bill, which was asked by the complainant by submitting affidavit, is missing from the legal papers submitted by him along with the complaint. It indicates that the complainant has not come with clean hands and has some malafide intention to blame, defame, harass the O.P. No.1 & O.P. No.2. The complainant did not use to earn Rs.12,000/- PM by working in Sanjivani Life Science Hospital. The complainant has not become permanently // 17 // disabled and has not lost his earning completely because of amputation of his left leg. The complainant is still employed and able to earn as much as before. Question of paying any compensation for loss of earning, therefore, does not arise. No cause of action has arose on issuance of legal notice as the O.P. No.1 & O.P. No.2 are not bound to fulfil illegal demand of complainant without any fault or negligence of the O.P. No.1 & O.P. No.2.The O.P. No.1 & O.P. No.2 have not committed any deficiency in service as they have done everything what was expected of them as a treating doctor. The accidents are untoward unwanted incident and if it occurs with any person, the person is bound to suffer its consequences. The consequences suffered by the complainant were also unwarranted for the O.P. No.1 & O.P. No.2, they treated the patient with protocol needed for treatment of illness of the patient, without any deficiency or negligence in treatment on their part. The complainant is not entitled for a sum of Rs.67,53,270/- as damages and compensation, any other amount from O.P. No.1 & O.P. No.2 as they have not committed any medical negligence amounting to deficiency in service especially when the complainant had left the hospital against medical advise. The complaint for recovery of Damages / Compensation being devoid of any merit, is liable to be rejected with costs under provisions of Section 26 of the Consumer Protection Act, 1986.
4. The O.P. No.3 filed his written statement and averred that the present complaint is not tenable against the O.P. No.3, as he has rendered // 18 // his services to the patient under contract of personal services to the O.P. No.1. The complaint under reference is false, malafide and not sustainable in Law as the liability of a doctor arises only when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care; and once the existence of a duty has been established, the complainant must still prove the breach of duty and the causation. The complainant has to prove the negligence or deficiency in service on the part of Doctor by adducing expert evidence or opinion and this fact is to be provide beyond all reasonable doubts. Mere bald allegation of negligence will be of no help to the complainant as he has completely failed to fulfil the above criteria. The complaint, therefore, is not maintainable as against the O.P. No.3. The complainant was admitted in the Hospital on 26.04.2015 with the history of road traffic accident. The patient was examined by O.P. No.2 and was advised for necessary investigations and treatment was started and carried out as per prescribed norms and medical procedure; and the complainant was operated upon successfully on 27.04.2015 as per preoperative planning after obtaining informed written consent, which was given voluntarily from the complainant's side. The doctors are also human being and they also have some emergencies, for which they are required to fulfil their personal obligations, similarly Dr. Sanjay Pandey also had emergency and he was supposed to move out of station and the same was informed to the patient and his relatives during the course of treatment. The O.P. No.1 had proper substitute arrangement for further treatment in absence of the // 19 // O.P. No.2. Therefore, question of putting complainant's life in danger, does not arise. The O.P. No.3 was looking after the patient in the period when the O.P. No.2 was out. The O.P. No.3 being a surgeon himself was competent enough to take care of the complainant and his postoperative wound of orthopaedic implant surgery. The complainant was in fact properly looked after and managed efficiency by doctors of O.P. No.1 who took daily rounds of the patient and inspected the wound. Till Second of May, 2015 the serous discharge had reduced but on 03.05.2015 the O.P. No.3 noticed that the patient was having low grade fever and had some abnormal discharge. He then immediately on 03.05.2015 asked for getting pus culture and sensitivity test done. As growth of bacteria in culture and its sensitivity to antibiotics takes at least two days for its report, the O.P. No.3 while waiting for pus culture and sensitivity report, managed the patient symptomatically and got the daily dressing done. Two stitches were purposefully kept open by the O.P. No.2 as per routine procedure, to let the serous drained out. The O.P. No.3, who in absence of O.P. No.2 had advised the purse culture test. Sample for which was taken on 03.05.2015 itself. No medical negligence was done by the O.P. No.3. The O.P. No.4 has not given incomplete and wrong report. The complainant has made wild allegation against the O.P. No.4. The O.P. No.2 returned on 05.05.2015 and resumed the charge of the patient and continued treatment thereafter and was taken up for surgical debridement and re-debridement as and when required after taking well informed consent. The patient was treated in accordance with the prescribed // 20 // procedure for his ailment during his admission from 26.04.2015 till the date (17 days) patient left the hospital. On 12.05.2015 itself, in the night around 08.00 PM, the complainant's attendants's namely his father and sister took him away from the hospital AGAINST MEDICAL ADVICE, despite repeated counselling and advise to continue the treatment in Heritage Hospital. It is pertinent to mention that till the last day of the patient in hospital, the patient's affected limb was viable warm; having circulation flexion of the toes, and till that day, there was no indication for his limb to be amputed. The complainant left the hospital voluntarily only after doing signature on Leaving Against Medical Advise from a separate LAMA consent, which makes it crystal clear that the O.P. No.1 to O.P. No.4 did their duty with utmost care and caution therefore there is no question of medical negligence or deficiency in service. The patient left the hospital AGAINST MEDICAL ADVISE, despite repeated counselling and advise to continue the treatment in Heritage Hospital. It is reiterated that till the last day of the patient in hospital, the patient's affected limb was viable, warm; having circulation flexion of the toes, and till that day, there was no indication for his limb to be amputed. The O.P. No.1 to O.P. No.4 were not responsible for complainant's present condition. The complainant has infact not been able to prove any negligence against the O.P. No.3 by way of any evidence of a Medical Expert or Medical Literature as to what they did, which was not expected of a Doctor of average skill or they did not do what was expected of a Doctor possessing ordinary skill. In absence of any proof thereof, no case // 21 // of medical negligence is made out against the O.P. No.3 by the complainant. To compare with the treatment given in Balaji Hospital, it is pertinent to mention here that as per the treatment papers of Balaji Hospital, the line of treatment in both the Hospitals were similar, the O.P. No.3, therefore, cannot be held guilty of any medical negligence. Due reply was given by the hospital whenever any information was asked for. The reply to the queries of Ms. Bhavna Mishra was denied because the details of the patient could only be given to the patient on his request, if he is alive or to the next to kin if he is dead. A point wise reply to the queries of the patient was handed over on 12.12.2015. Similarly, on submission of affidavit that the complainant has lost the original hospital bill and that he requires duplicate bill, same was immediately issued on 18.02.2016. The O.P. No.3 did not receive any E-Mail regarding the request of having a copy of the case sheet. The whole hospital records were handed over to the Police when asked for by the Police competent authority on 15.01.2016. Later on the reply by the hospital doctors to the notice of complainant's lawyer was also given in time on 25.07.2016. The total hospital record papers were handed over to the Police. It is surprising however, that few of the papers of hospital records, specially the high risk consent papers and the paper of leaving against medical advise separate consent and the duplicate hospital bill, which was asked by the complainant by submitting affidavit, is missing from the legal papers submitted by him along with the complaint. It indicates that the complainant has not come with clean hands and has some malafide // 22 // intention to blame, defame, harass the O.P. No.3. The complainant did not use to earn Rs.12,000/- PM by working in Sanjivani Life Science Hospital. The complainant has not become permanently disabled and has not lost his earning completely because of amputation of his left leg. The complainant is still employed and able to earn as much as before. Question of paying any compensation for loss of earning, therefore, does not arise. No cause of action has arose on issuance of legal notice as the O.P. No.1 & O.P. No.2 are not bound to fulfil illegal demand of complainant without any fault or negligence of the OPs. The O.P. No.3 has not committed any deficiency in service as he has done everything what was expected of him. The complainant is not entitled for a sum of Rs.67,53,270/- as damages and compensation, any other amount from O.P. No.3 as no medical negligence amounting to deficiency in service has been committed by the O.P. No.3, especially when the complainant had left the hospital against medical advise. This act in itself was negligence on the part of complainant, who was being treated as per the established way of treatment and protocol by the doctors of O.P. No.1, bald allegation against them therefore, is vexatious and defamatory and exposes the complainant to compensate with exemplary cost. The complaint for recovery of Damages / Compensation being devoid of any merit, is liable to be rejected with costs under provisions of Section 26 of the Consumer Protection Act, 1986.
// 23 //
5. The O.P. No.4 Dr. Aamir Hussain filed his written statement and averred that he is Pathologist in Heritage Hospital, Raipur. The patients who are admitted in the hospital and if they require blood, urine, pus or any other test, then as per the instruction of treating doctor, immediately sample is taken and as per medical principles, the sample is tested and report is given to the patient. The Pus Culture Test was done by O.P. No.4. On 03.05.2015, the doctor advised for pus culture and on 03.05.2015 itself the sample was taken for pus culture and conducting entire test the report of Pus Culture and Sensitivity was provided on 05.05.2015. On the instruction of the doctor, the sample was taken on 03.05.2015 itself. In the document A-31 filed by the complainant, it is clearly mentioned that Culture Sensitivity of Discharge from wound. Thus the sample was taken on 03.05.2015 and after conducting proper test, the report was given on 05.05.2015 in which there is no error. In the report dated 05.05.2015, infection i.e. bacteria growth has been clearly shown. When culture sensitivity test is conducted, then there is growth of Klebsiellae bacteria and simply this growth is occurred within 18 to 24 hours and some time in one night the growth is seen, even then time above 24 hours is taken and sometime this time is more, therefore, the patient is told to wait for two days, so that he is not worried and therefore, in case of early growth, report is provided earliest and if time of 18 to 24 is taken, when the growth is seen, immediately report is given. In the case of the complainant also sample was taken on 03.05.2015 and on 05.05.2015, // 24 // report was provided, in which there is no mistake or negligence. The complaint is liable to be dismissed against the O.P. No.4.
6. The O.P. No.5 has filed its written statement and averred that the patient Arvind Bhardwaj was got admitted in the O.P. No.5 hospital on 13.05.2015 at about 12.30 A.M. and after his admission his preliminary examination was done by Dr. Sachine Mall, Orthopedics Surgeon and Dr. Gurpal Singh Chhabra (Plastic Surgeon) After examination, clinical findings were found, which are mentioned in para 2 of the written statement. The O.P. No.5 did not commit any negligence in treatment. The complainant and his relatives were informed regarding the condition of the patient and also informed regarding the treatment given to the complainant. The patient was treated in the O.P. No.5 Hospital and the first operation of the patient was conducted by Plastic Surgeon Dr. Gurpal Singh Chhabra on 15.05.2015 After conducting operation on 15.05.2015, the condition of the wound of the patient was not changed and from the wound, foul smell was oozing out, pus was discharging and the patient was suffering from fever. Then looking to the condition that complainant will be suffered from Septicemia, decision was taken to ampute the leg below knee through operation by Orthopedics Surgeon Dr. Sachin Mall and Plastic Surgeon Dr. Gurpal Singh Chhabra, which was essential to save life of the patient. Prior to operation, all information was given to the complainant regarding amputation and written consent was also obtained. On 18.05.2015 the leg of the patient was amputed near knee and // 25 // the wound was kept open so that Septicemia cannot occur. From 18.05.2015 to 25.05.2015, the dressing of amputed wound was done. On 26.05.2015 when the condition of the wound was improved, then the wound was close by stitching. The O.P. No.5 gave better treatment to the complainant and provided all documents and bills to the complainant. The O.P. No.5 did not commit any negligence. The complaint is liable to be dismissed against the O.P. No.5 The O.P. No.5 did not do any act, which comes in the category of medical negligence and unfair trade practice. The O.P. No.5 has properly treated the complainant and did not take any additional amount and gave correct treatment to the complainant. The complainant is not entitled to get any relief as prayed by him. The O.P. No.5 did not commit any negligence or unfair trade practice. The complaint is liable to be dismissed with cost against the O.P. No.5.
7. The complainant has filed documents. Annexure A-1 to 14 are photographs, Annexure A-1t to A-62 are record regarding treatment in Heritage Hospital from 26.04.2015 to 12.05.2015, Annexure A-63 to A-115 are record regarding treatment in Balaji Hospital from 13.05.2015 to 03.08.2015, Annexure A-116 is details of bill amount, Annexure A-117 to A-179 are medical bills of Heritage Hospital, from 26.04.2015 to 12.05.2015,Annexure A-180 to A-285 are medical bills of Balaji Hospital, from 13.05.2015 to 03.08.2015, Annexure A-286 to A-310 are details of payment made to Balaji Hospital, Annexure A-311 demand letter of // 26 // Heritage Hospital, Annexure A-312 is e-mail complaint dated 07.12.2015, Annexure A-313 is E-mail complaint dated 09.12.2015, Annexure A-314 is reply of Heritage Hospital, Annexure A-315 is complaint made to Police Station, Devendra Nagar on 16.12.2015, Annexure 316 is complaint made to Superintendent of Police on 16.12.2015, Annexure A-317 is Police Hastashep-Ayogya Apradh Ki Suchana, Annexure A-318 is legal notice dated 18.07.2016 sent to OPs, Annexure A-319 to A-323 are postal receipts, Annexure A-324 to A-327 are acknowledgements, Annexure A-328 is reply dated 25.07.2016, Annexure A-329 is registration document dated 23.10.2013, Annexure A-330 is licence document dated 17.11.2006.
8. The O.P. No.2 has filed documents. Document OP-1 is Consent Letter dated 26.04.2015, Annexure OP-2 is High Risk Consent, Annexure OP-3 is Continuation Sheet (Inpatient) of Heritage Hospital for period 01.05.2015 to 04.05.2015, Annexure OP-4 is report dated 05.05.2015 given by Dr. Aamir Hussain, Annexure OP-5 is Colour Doppler Report dated 08.05.2015, Annexure OP-6 is Continuation Sheet (Inpatient) of Heritage Hospital from 05.05.2015 to 08.05.2015, Annexure OP-7 is Consent Letter, Annexure OP-8 is Continuation Sheet (Inpatient) of Heritage Hospital dated 15.05.2015, Annexure OP-9 is High Risk Consent, OP-10 is Admission records of Heritage Hospital, Annexure OP-11 is LAMA Consent dated 12.05.2015, OP-12 is Medical Literature on Surgical Wound Infection - treatment, OP-13 is letter sent by Dr. Sanjay Pandey to the complainant, Annexure OP-14 is application dated 18.02.2016 submitted // 27 // by the complainant before O.P. No.1, Annexure OP-15 is Duplicate bill - Indoor Patient Investigations/Procedures from 26.04.2015 to 13.05.2015, OP-16 is Indoor Patient Bill dated 13.05.2015, Annexure OP-17 is Advance Receipt dated 18.02.2016, Annexure OP-18 is letter dated 25.07.2016 sent by O.P. No.1 to O.P. No.4 to the complainant in response to notice dated 18.07.2016 sent by Shri Saurabh Shukla, Annexure OP-19 is High Risk Consent, Annexure OP-20 is Admission Records of Heritage Hospital, Annexure OP-21 is letter dated 15.06.2017 sent by Public Information Officer, District Hospital, Raipur to Mr. Shahnawaz, Supervisor, Heritage Hospital, Raipur to send information under Right to Information Act, 2005, Annexure OP-22 is letter dated 08.06.2017 sent by Public Information Officer, District Hospital, Durg to Shri Shahnawaz, Supervisor, Heritage Hospital, Raipur, letter sent by Dr. K.D. Tiari, HOD & Orthopedician, District Hospital, Durg (C.G.) to Public Information Officer, District Hospital, Durg, OP-23 is letter dated 15.06.2017 sent by Public Information Officer, District Hospital, Raipur to Mr. Shahnawaz, Supervisor, Heritage Hospital, Raipur, Annexure OP-24 is letter dated 08.06.2017 sent by Dr. Vipin Jain, Public Information Officer, District Hospital, Durg (C.G.) to Shri Shahnawaz, Supervisor, Heritage Hospital, Raipur
9. The O.P. No.1, 3, O.P. No.4 and O.P. No.5 have not filed any documents.
// 28 //
10. Shri Saurabh Shukla, learned counsel appearing for the complainant has argued that the complainant belongs to a middle class family, who has completed B.E. Engineering and he is only earning member in his family. On 26.04.2015, the complainant met with an accident at about 10 A.M. at Village Kasdol when he was coming to Raipur from his village, the complainant fell down from his motorcycle due to which the complainant sustained injuries in knee of his left leg. The complainant was immediately brought to Primary Health Centre, Kasdol for primary treatment where he was advised to go to Raipur for better treatment. The complainant was brought to Raipur and was got admitted in O.P. No.1 Heritage Hospital at 5.00 P.M. in presence of his sister Bhavna, where his treatment and operation was done. On 26.04.2015, the preliminary test, X-ray, ECG, blood test and other various tests were done by the O.P. No.2 and he informed that in the knee of left knee, there is minor fracture for which operation is required to be done. On being information given by the O.P. No.2, the complainant and his family members, gave their consent for treatment of the injury sustained by the complainant. On 27.04.2015 at 9.00 .M., the O.P. No.2 conducted surgery of knee of left leg of the complainant. The complainant made complaint to the O.P. regarding pain in fingers of the left leg and that there is no movement in it, but the O.P. No.2 told the complainant that it is the immediate effect of the operation and after some days it will become automatically alright. The same complaint was also made by the complainant to the O.P. No.2 on next day, but no response was given by // 29 // the O.P. No.2. After operation on 30.04.2015, the staff of O.P. No.2 opened the bandage and found that from the place where injury sustained and operation was done, continuously pus was oozing out and from the place of injuries two stitches is also opened and at the above place there is problem of cavity and other problem and injury was not healed properly. The complainant and his sister Bhavna tried to contact O.P. No.2, but staff of the O.P. No.1 Hospital informed Bhavna that O.P. No.2 is out of station and the O.P. No.2 did not make any alternative arrangement for treatment of the complainant and left the complainant unattended . From 30.04.2015, the complainant and his sister Bhavna continuously several times made complaints regarding negligence committed while conducting operation, kept open the stitches and regarding other negligence, but the O.P. No.2 did not pay attention to their requests. Even the complainant was not examined by Dr. Kishore Jha, who is Neuro Surgeon and present in hospital. The staff of O.P. No.1 told the complainant and his sister that the complainant is patient of O.P. No.2 therefore, only O.P. No.2 can give treatment to the complainant and they ignored the complainant, whereas the complainant had suffered severe pain. The complainant several time requested the O.P. No.3 Dr. Nischal Tiwari to treat the place of injury, but he did not treat him. On 05.05.2015, the O.P. No.3 examined the complainant and found that there was collection of pus and foul smell is coming out. The stitches at the place of injurie was opened due to which the place of injury became black. The pus sample was already taken on 05.05.2015 and report was // 30 // also given on the same day, whereas minimum 48 hours is taken for giving exact report regarding bacteria. The pus was collected and the report was given on same day. It shows that the false report was given by the Pathologist (O.P. No.4). On 12.05.2015, Dr. Asif Memon, who is a Plastic Surgeon was called and he again conducted operation, but after the said operation, the leg of the complainant became lifeless. On 12.05.2015, Dr. Asif Memon, informed the sister of the complainant that the condition of the leg of the complainant has become critical and there is no possibility of curing the leg. The O.P. No.2 also accepted the same. The O.P. No.1 to O.P. No.4 continuously committed negligence in treatment of the complainant. When the O.P. No.1 to O.P. No.4 did not give proper response and committed negligence, then the complainant was got discharged from O.P. No.1 hospital and was got admitted in the O.P. No.5 Hospital for treatment on 13.05.2015. The O.P. No.1 to O.P. No.4 have forcibly mentioned in the discharge summary that the patient got discharge on LAMA. On 14.05.2015, the operation was conducted and it was tried to save his leg, but as his leg was not cured, therefore, on 18.05.2015, the leg of the complainant was amputed. On 09.06.2015, the complainant was discharged from O.P. No.5 Hospital, where the complainant spent a sum of Rs.5,25,388/-. The OPs intentionally extracted the amount from the complainant. After three months again Indolight leg was fitted in which Rs.1,16,400/- was spent for which the OPs are liable. The treatment papers were not given by the O.P. No.1 to O.P. No.4 to the complainant, whereas the complainant had continuously // 31 // demanded the same. The complainant is belonging to a middle class family and is working in Sanjeevani Life Science Hospital, Durg - Rajnandgaon and he is only earning member of his family and all family members are dependent on him. Due to medical negligence committed by OPs , the complainant suffered loss and has spent Rs.7,13,270/- in his treatment. The complainant is also entitled for getting amount towards future earning income, therefore, the OPs are liable to pay compensation to the complainant, as prayed by him in the complaint. The complaint may be allowed. He placed reliance on Employees State Insurance Corporation Ltd. & Anr. Vs. Sudha Dhobriyal& Anr. II (2013) CPJ 28 (NC); Vinod Kumar Gupta (Dr.) Vs. Ruplal Yadav & Anr. II (2013) CPJ 134 (NC); Poonam Verma Vs. Ashwin Patel & Ors., II (1996) CPJ 1 (SC); G. Swaminathan (Dr.) & Ors. Vs. G. Rajendran, IV (2014) CPJ 29 (NC); Revision Petition No.3698 of 2012 - The Apollo Emergency Hospital Vs. Dr. Bommakanti Sai Krishna & Anr. decided by Hon'ble National Commission on 05.02.2013; Goyal Hospital and Research Centre Pvt. Ltd. Vs. Kishan Gopal Shukla & Anr. II (2013) CPJ 708 (NC);Dr. (Mrs.) Manika Roy & Anr. Vs. Dr. B.L. Chitlangra & Ors. decided by Hon'ble National Commission on 05.01.2016; D. Uma Devi Vs. M/s Yadhoda Hospital & 3 others, decided by Hon'ble National Commission on 11.04.2016.
11. Shri Shishir Bhandarkar, learned counsel appearing for the O.P. No.1 & O.P. No.2 has argued that the complainant was got admitted in the O.P. No.1 hospital on 26.04.2015 by his sister Bhavna Mishra with the // 32 // history of road traffic accident and there is no history of Hypertension, Diabetes Mellitus, Asthma and Sickling The complainant was examined by the O.P. No.2 and it was found that the complainant had suffered fracture of condyle of tibia and is required surgical intervention for its treatment. The nature of injury /operation and possible post operative complications and requirement of blood and plate screw fixation were explained to the complainant and his sister Bhavna. Prior to operation, the complainant was thoroughly checked up by the Physician Dr. R.K. Patel, and on his finding all the parameters within permissible limit, he declared the complainant fit for operation and the complainant was operated on 27.04.2015 and as per pre-operative planning open reduction of fracture and its fixation by plate and screw was performed successfully after obtaining written consent. Though the operation was successful but the O.P. No.2 had never given any assurance of complete recovery to the patient or his attendant. In any type of surgery, there is some degree of risk in it as the human body reacts differently and unexpectedly to the particular type of treatment which was properly explained to the complainant and his sister prior to surgery. After the surgery, the complainant had not developed complaint of pain and lack of movement in his left toe. The contention raised by the complainant is false. All necessary investigations and pre-operative diagnosis were carried out and thereafter after explaining the complication prior to operation, the consent was obtained from the complainant and his sister. On 28.04.2015, regular post operative rounds were taken and the patient's general condition // 33 // and operative site bandage was medically found to be satisfactory. On 29.04.2015, the complainant was examined and found to have swelling on the operation portion of his leg and accordingly dressing was done. On 30.04.2015, it was found that the wound had minimal serous discharge. To see for any pus / infection inside, two stitches were removed and it was found that there was no pus inside. Therefore, the stitches were purposefully left open to drain out the serous discharge and wound was dressed. The O.P. No.2 went out of station and the same was pre- planned. The O.P. No.2 deputed O.P. No.3 Dr. Nischal Tiwari, who is also a Surgeon and he was looking after the patient in the period when the O.P. No.2 was out of station. The O.P. No.3 is also competent to treat the complainant and the O.P. No.3 continuously attended the complainant and inspected the wound. On 03.05.2015, the O.P. No.3 noticed that the patient was having fever and had some abnormal discharge. He then immediately asked for getting pus culture and sensitivity test done. The same was taken on 03.05.2015 and the O.P. No.4 give his report on 05.05.2015 and thereafter antibiotics was checked and proper treatment was given to the complainant. On 08.05.2015, the toe movement was reduced and dorsalis paaedis pulsation could not be felt due to edema. No immediate surgical intervention was required. On 08.05.2015, the patient had developed headache for which opinion of Dr. Kishore Jha, Neuro Surgeon and CT Scan head was asked for the complaint of headache got relieved the other day, the opinion and CT Scan was deferred to save expenses. On 09.05.2015, after explaining the // 34 // condition of the patient to the attendants and the patient and obtaining well informed consent, the patient was taken up for surgical debridement procedure and thorough debridement of anterior compartment was performed. The necrotic muscle of the whole Anterior compartment were excised which were in accordance with protocol for treatment prescribed for the condition the complainant was faced with. On 10.05.2015, since the fever of the patient continued, tests for other causes of fever were done. On 11.05.2015 also since the patient had fever with foul smell discharge from wound, surgical re-debridement was planned on 12.05.2015 and Dr. Asif Memon, who is a Plastic Surgeon was called for wound debridement. Dr. Asif Memon found that the wound still had pus discharge. The condition was explained to the patient and his relative and advised to continue the treatment but patient got discharge against Medical Advice. To compare with the treatment given in Balaji Hospital, it is pertinent to mention here that as per the treatment papers of Balaji Hospital, the complainant was admitted with no history of Hypertension, Diabetes, asthma and allergy and was put on medicines which were already being given in Heritage Hospital. Therefore, it is established that the line of treatment given by the O.P. No.1 & O.P. No.2 was similar to that of Balaji Hospital. The standard protocol was followed by the O.P. No.1 hospital and staff in case of complainant also. Klebsiella bacterial post operative infection usually occurs endogenously i.e. from patient's gut oral mucosal lining and skin flora, which sometimes does not come under control despite best efforts. The O.P. No.1 & O.P. // 35 // No.2 did not commit any medical negligence. The medical papers were provided to the complainant. It is surprising that few of the papers of hospital records, specially the high risk consent papers and the paper of leaving against medical advise separate consent and the duplicate hospital bill, which was asked by the complainant by submitting affidavit, is missing from the legal papers submitted by him along with the complaint. It indicates that the complainant has not come with clean hands and has some malafide intention to blame, defame, harass the O.P. No.1 & O.P. No.2.therefore, the complaint is liable to be dismissed. He placed reliance on Martin F. D'Souza Vs. Mohd. Ishfaq, I (2009) CPJ 32 (SC); Chief Medical Officer & Anr. Vs. Ramesh Chand Sharma, II (2015) CPJ 295 (NC); Chand Kishore Rajput Vs. Sood Stone Clinic (Hospital) & Anr. I (2015) CPJ 101 (NC); Biswajeet Kumar Singh Vs. Dhanbad Central Hospital, Saraidhela & Ors. IV (2012) CPJ 825 (NC); Prayag Hospital & Research Centre Pvt. Ltd. & Anr. Vs. Vijay Pal, II (2016) CPJ 615 (NC); Jacob Mathew (Dr.) Vs. State of Punjab & Anr. III (2005) CPJ 9 (SC); C.P. Sreekumar (Dr.) Vs. S. Ramanujam, II (2009) CPJ 48 (SC); Naseem Mohammed Bashir Ansari Vs. Dhange Hospital & Ors. II (2007) CPJ 259 (NC); Miss Heart Parmar Vs. Venilal G. Panchal & Ors. I (2017) CPJ 619 (NC); Manishbhai Kantilal Joshi Vs. Sheth P.T. Surat General Hospital & Ors. III (2016) CPJ 392 (NC).
12. Shri K.K. Shukla, learned counsel appearing for the O.P. No.3 has adopted the arguments advanced by Shri Shishir Bhandarkar, learned counsel for the O.P. No.1 & O.P. No.2. Shri K.K. Shukla has further // 36 // argued that the O.P. No.3 has discharge his duty properly and he is competent to treat the complainant. The O.P. No.3 did not commit any medical negligence. The complaint is liable to be dismissed against O.P. No.3.
13. Miss Praveen Arora, learned counsel appearing for O.P. No.4 has argued that the O.P. No.4 is Pathologist in Heritage Hospital, Raipur. The patients who are admitted in the hospital and if they require blood, urine, pus or any other test, then as per the instruction of treating doctor, immediately sample is taken and as per medical principles, the sample is tested and report is given to the patient. The Pus Culture Test was done by O.P. No.4. On 03.05.2015, the doctor advised for pus culture and on 03.05.2015 itself the sample was taken for pus culture and conducting entire test the report of Pus Culture and Sensitivity was provided on 05.05.2015. On the instruction of the doctor, the sample was taken on 03.05.2015 itself. In the document A-31 filed by the complainant, it is clearly mentioned that Culture Sensitivity of Discharge from wound. Thus the sample was taken on 03.05.2015 and after conducting proper test, the report was given on 05.05.2015 in which there is no error. In the report dated 05.05.2015, infection i.e. bacteria growth has been clearly shown. When culture sensitivity test is conducted, then there is growth of Klebsiellae bacteria and simply this growth is occurred within 18 to 24 hours and some time in one night the growth is seen, even then time above 24 hours is taken and sometime this time is more, therefore, the // 37 // patient is told to wait for two days, so that he is not worried and therefore, in case of early growth, report is provided earliest and if time of 18 to 24 is taken, when the growth is seen, immediately report is given. In the case of the complainant also sample was taken on 03.05.2015 and on 05.05.2015, report was provided, in which there is no mistake or negligence. The complaint is liable to be dismissed against the O.P. No.4.
14. Shri R.K. Bhawnani, learned counsel appearing for the O.P. No.5 has argued that the complainant Arvind Bhardwaj was got admitted in the O.P. No.5 hospital on 13.05.2015 at about 12.30 A.M. and after his admission his preliminary examination was done by Dr. Sachine Mall, Orthopedics Surgeon and Dr. Gurpal Singh Chhabra (Plastic Surgeon) After examination, clinical findings were found, which are mentioned in para 2 of the written statement. The O.P. No.5 did not commit any negligence in treatment. The complainant and his relatives were informed regarding the condition of the patient and also informed regarding the treatment given to the complainant. The patient was treated in the O.P. No.5 Hospital and the first operation of the patient was conducted by Plastic Surgeon Dr. Gurpal Singh Chhabra on 15.05.2015 After conducting operation on 15.05.2015, the condition of the wound of the patient was not changed and from the wound, foul smell was oozing out, pus was discharging and the patient was suffering from fever. Then looking to the condition that complainant will be suffered // 38 // from Septicemia, decision was taken to ampute the leg below knee through operation by Orthopedics Surgeon Dr. Sachin Mall and Plastic Surgeon Dr. Gurpal Singh Chhabra, which was essential to save life of the patient. Prior to operation, all information was given to the complainant regarding amputation and written consent was also obtained. On 18.05.2015 the leg of the patient was amputed near knee and the wound was kept open so that Septicemia cannot occur. From 18.05.2015 to 25.05.2015, the dressing of amputed wound was done. On 26.05.2015 when the condition of the wound was improved, then the wound was close by stitching. The O.P. No.5 gave better treatment to the complainant and provided all documents and bills to the complainant. The O.P. No.5 did not commit any negligence. The complaint is liable to be dismissed against the O.P. No.5 The O.P. No.5 did not do any act, which comes in the category of medical negligence and unfair trade practice. The O.P. No.5 has properly treated the complainant and did not take any additional amount and gave correct treatment to the complainant. The complainant is not entitled to get any relief as prayed by him in the complaint. The O.P. No.5 did not commit any negligence or unfair trade practice. The complaint is liable to be dismissed with cost against the O.P. No.5.
15. We have heard learned counsels appearing for the parties and have also perused the documents filed by the parties in the complaint case.
// 39 //
16. In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, he has mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :-
"What is Medical negligence The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico-legal jurists have not come forward to provide a specific meaning to this express.
'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptieable to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exist inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery.
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.
Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or otherwise in a particular case.
(1) Duty of care in accepting the patient for treatment.
(2) Duty of care in providing appropriate treatment.
// 40 // (3) Breach of duty or commission of negligence in any of them and damage cause by such breach.
In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery.
Classification of medical negligence or mistakes. Negligence in medical care may broadly be classified into four categories :-
(1) Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved.
(2) Negligence at the level of patient himself or his attendants also known as contributory negligence.
(3) Negligence at the level of manufacturers of drugs, equipment etc. and dispensers.
(4) Composite negligence i.e. at more than one of the above 3 levels.
Negligence of first category may further be sub-classified into two categories viz.
(i) Individual liability of a medical professional.
(ii) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :
1. Medical mistakes.
2. Clinical negligence.
3. Surgical mistakes
4. Misplaced injection."
17. The complainant has filed document Annexure A-63 which is Discharge Summary issued by Shri Balaji Hospital, Raipur, in which it is mentioned thus :-
// 41 // "Name : Mr. Arvind Bhardwaj Mr. No.154483 Age / Sex : 27 / M IP No.151600848 Doc. Name : Dr. Sachin Mall DOA:13/May/2015 00:34:10 D.O.D. 09/06/15 Consultant Incharge : Dr. S.Mall (MS MCH) Dr. G.A. Chhabda [MS, MCH].
Dept . : Orthopaedics / Plastics Surgery.
Diagnosis : Elsewhere case of Management Fracture Tibia Left with Distal NVD.
Procedure : 1. Debridement of wound. [Dr. G.A. Chhabda]
2. Through Knee Disarticulation [Dr. S. Mall]
3. Revision of Stemp. [Dr. S. Mall] Date of Procedure - [1]14/05/15 [2] 18/05/15 [3] 26/05/15 Result : Improved.
History : Alleged H/o - RTA On date 26/04/15 at time 9 AM Compound Fracture Tibia LT. operated on Date 27.04.15 and Debridement of Wound done on Date 12.05.15 on Heritage Hospital CNS - Conscious.
Investigation : As per record.
Viral Marker - Non Reactive X-ray - Attached.
Medication :
IVF Antibiotics PPI Pain Killer.
Precaution : Daily Dressing.
Stiches will be removed after 10 days.
Follow Up : Review with Dr. S. Mall [MS.MCH] Dr. G.A. Chhabda [MS, MCH] after 10 days prior appointment or SOS."
// 42 //
18. The complainant has filed document Annexure A-64, which is Operation Notes of Shri Balaji Institute of Medical Science Pvt. Ltd. , in which it is mentioned thus :
"Diagnosis : O/C/o # U/3rd Tibia with fascietey with infected wound.
Surgical : Debridement Procedure :
Surgeon : Dr. G.S. Chhabda Assistant :
Anaesthetist : Dr. Vinod Lohani Assistant :
Nurse : Digesty Muli
Duration : 12:15 PM to 1:30 PM.
Incision : S/A.
Findings : - C/o fascietey wound (L) lower on antero lateral aspect and post aspect.
- C/o : renosed arteries, lateral gut of muscle with fould smelling with purulent collection seen through antero lateral wound (facsietey)
- C/o :Thrombosed anterion tibial neuro vescula burdle. C/o Plate seen art. Lt. asp.? Knee.
- C/o : Renosed Gastrocnemius + solane + tibia post seen through post fascietey wound.
- All necrotic muscle excised. Attender (Bhawna - Pts Sister) shown the site through last given, dressing done."
// 43 //
19. The complainant has filed document A-65 which is Continuation Sheet (Inpatient) of Shri Balaji Hospital in which it is mentioned that the complainant was admitted on 12.06.2015 at 11.30 P.M. and it is further mentioned that RTA on 26.05.2015 at 9.45 AM. With compound fracture Tibia (Lt) operated on 27.04.15 on Heritage Hospital and debridement of wound done on 12.05.15.
20. The Aerobic Culture was also done in Shri Balaji Institute of Medical Science Pvt. LTd. . The sample was collected on 30.05.2015 and report was given on 03.06.2015. The complainant has filed document A-89 which is Aerobic Culture Report issued by Shri Balaji Institute of Medical Science Pvt. Ltd. in which it is mentioned thus :-
"Gram stain : Many Gram negative bacilli seen.
Culture report : Growth of Klebsiella pneumoniae"
21. The complainant has filed Color Doppler Left Lower Limb Report dated 13.05.2015 (Annexure A-101), issued by Shri Balaji Institute of Medical Science Pvt. Ltd. Raipur in which is it mentioned thus :-
There are enlarged left inguinal lymph nodes.
IMPRESSION :
Biphasic waveform in the left common to posterior tibial arteries, likely due to vasodilatation, monphasic dampened waveform in the distal Tibial and dorsalis pedis arteries, likely form collateral circulation or proximal stenosis.
Diffuse lower limb cellulitis with subcutaneous edema."
// 44 //
22. The O.P. No.2 has filed document Annexure OP-4 which is Pus Culture and Sensitivity Report dated 05.05.2015 issued by Department of Pathology, Heritage Hospital, in which it is mentioned "Bacteria Grown :
Kleibsella Organism Grown.""
23. The complainant has filed document Annexure A-76, which is O.T. Consent given to Shri Balaji Superspecialty Hospital by Baraturam, in which it is mentioned thus :-
"O.T. Consent gekjs ejht Jh vjfoan Hkkj}kt mez&27 o"kZ ds ckjs esa fpfdRldksa }kjk HkyhHkkafriwoZd le>k;k x;k fd fnukad&27-04-2015 dks gsfjVst vLirky esa cka;k iSj ds Tibia dk vkWijs'ku gqvk Fkk ftlesa laØe.k gksus ds dkj.k ogka ij dh Ropk vkSj Ård lM+us yxk gS vkSj [kwu dk izokg @cgko ugha gks ik jgk gS vkSj c<+rs gh tk jgk gS A 'kY; fpfdRldksa }kjk ?kqVus ;k ?kqVus ds Åij dkV ds vyx djus dh lykg fn;k x;k gS vkSj vkWijs'ku ds le; nh tkus okyh csgks'kh ds nq"izHkko ds ckjs esa le>k;k x;k gS A vr% ;g lc tkurs gq, ge vius ejht 'kY; fØ;k djkus dh vuqefr iznku djrs gSa ;fn 'kY; fpfdRldksa }kjk ;k ckn esa dksbZ vfiz; ?kVuk ?kfVr gksrh gS ] mldh iwjh ftEesnkjh gekjs vkSj dsoy gekjs ifjtu dh gksxh A blesa gkWLihVy izca/ku ;k vU; deZpkjh dh tokcnkjh ugha gksxh A"
// 45 //
24. The complainant has filed document Annexure A-66, which is O.T. Consent, given to Shri Balaji Hospital, Raipur by Shri Baraturam, in which it is mentioned thus :-
"gesa gekjs ejht dh fLFkfr ds ckjs esa MkW lkgc ds }kjk Li"V :i ls ;g le>k;k gS fd cka;s iSj esa nq?kZVuk ds dkj.k xaHkhj pksV vk;h gS rFkk iSj dh gM~Mh Hkh VwVh gS rFkk iSj dh ekalis'kh iwjh rjg {kfrxzLr ,oa QSy x;k gS ] ftlds bykt ds fy, MkW lkgc us vkWijs'ku dh lykg fn;k gS ] ftlesa t[e dks vkWijs'ku djus dh lykg fn;k gS ] ftlesa t[e dks vkWijs'ku djrs ,oa lØafer gM~Mh ds tksM+ksa ds fy, yxk;s x;s dks fudkydj u;k rFkk ckgj ls idM+ okys ,oa lSV yxk;k tk ldrk gS ArFkk bl izfØ;k esa vkWijs'ku ds nkSjku gksus okys tfVyrkvksa ds ckjs esa gesa Li"V :i ls le>k fn;k gS vr% bu lc ckrksa dks le>kdj ge vius ejht dh vkWijs'ku (debridement wound and removal of implant and external tibula-location) djus dh vuqefr MkW lkgc dks vuqefr iznku djrs gS rFkk vkWijs'ku ds nkSjku ,oa ckn esa tks Hkh vfiz; ?kVuk ?kfVr gksrh gS ] mlesa lkjh tokcnkjh gekjh gksxh A"
25. The complainant has filed document Annexure A-71, which is O.T. Consent, given to Shri Balaji Hospital, Raipur by Shri Baraturam, in which it is mentioned thus :-
"gesa gekjs ejht vjfoan Hkkj}kt dh fLFkfr dh lanHkZ esa lacaf/kr fpfdRld }kjk le>k fn;k x;k gS fd ejht dk vkt tks vkWijs'ku gksuk gS ] mlds ckn nks ls rhu ckj debridement - djus ds ckn gh nerve dh condition dk irk py ik,xk vkSj ;g irk pysxk // 46 // fd amputation dh t:jr iM+sxh ;k ugha A ;g lHkh fLFkfr le>rs gq, ge ejht ds vkWijs'ku dh lgefr iznku djrs gSA "
26 The O.P. No.2 has filed document Annexure OP-9, which is High Risk Consent given by Yogesh Kumar to Heritage Hospital, Raipur in which it is mentioned thus :-
"ge gekjs ejht Jh vjfoan Hkkj}kt mez&27 o"kZ ¼iq:"k½ firk Jh cjkrw Hkkj}kt irk ,V@iksLV Fkkuk Mh-Mh-uxj jk;iqj Nx-dk fuoklh gS ftudk bykt gSfjVst vLirky esa py jgk gS A MkWDVj lkgc tkap ds i'pkr~ ejht dh vkWijs'ku djkus dh lykg fn;k gS A vkWijs'ku ds nkSjku mi;ksx fd;s tkus okys fu'psruk vkS"kf/k;ksa ds nq"izHkko ds ckjs esa gesa gekjh vPNh rjg ls le>k fn;k gS A ;g lc tkurs gq, Hkh ge gekjs ejht dh vkWijs'ku djus dh lgefr iznku djrs gSa rFkk vkWijs'ku ds nkSjku ;k i'pkr~ ;fn ejht dks fdlh Hkh izdkj dh ijs'kkuh gksrh gS rks mldh laiw.kZ ftEesnkjh gekjh Loa; dh gksxh u dh MkWDVj lkgc dh ;k vLirky ds fdlh vU; deZpkjh dh A"
27. The O.P. No.2 has filed document Annexure OP-11, which is LAMA Consent given by Baraturam to Heritage Hospital, Raipur in which it is mentioned thus :-
"ykek dUlsaV & ge gekjs ejht Jh vjfoan Hkkj}kt mez&27 o"kZ iq:"k irk Mh-Mh-uxj jk;iqj Nx ds fuoklh gSa ftudk bykt gSfjVst gkWLihVy esa py jgk gS A MkDVj lkgc ds }kjk ejht dh fLFkfr ds ckjs esa ejht ds ifjtu dks izfrfnu le>k;k x;k Fkk fd vkWijs'ku ds nkSjku gksus // 47 // okyh fLFkfr ds ckjs esa iw.kZ :i ls le>k;k x;k gS ejht dh fLFkfr dks ns[krs gq, mls dqN fnu jgdj bykt djkus dh lykg nh gS ijarq ejht dks ge mls viuh ethZ ls ys tkuk pkgrs gSa A oDr ;k ckn esa dqN Hkh ijs'kuh gksrk gS ] rks bldks laiw.kZ ftEesnkjh gekjh gksxh u fd MkWDVj lkgc dh ;k fQj gkWfLiVy deZpkjh dh A"
28. The O.P. No.2 has filed document Annexure OP-19, which is High Risk Consent given by Baraturam to Heritage Hospital, Raipur in which it is mentioned thus :-
"ge gekjs ejht Jh vjfoan Hkkj}kt mez&27 o"kZ ¼iq:"k½ firk Jh cjkrw Hkkj}kt irk ,V@iksLV Fkkuk Mh-Mh-uxj jk;iqj Nx-dk fuoklh gS ftudk bykt gSfjVst vLirky esa py jgk gS A MkWDVj lkgc us ejht dh vPNh rjg ls bykt djus ds i'pkr~ ejht dh vkWijs'ku djkus dh lykg crkbZ gS A vkWijs'ku ds nkSjku iz;ksx fd;s tkus okys fu'psruk vkS"kf/k;ksa ds dqizHkko ds ckjs esa gesa gekjh Hkk"kk esa vPNh rjg ls le>k fn;k x;k gS A blls ejht ds tku ds [krjk Hkh gks ldrk gS A ;g lc tkurs gq, Hkh ge gekjs ejht dh vkWijs'ku djus dh lgefr iznku djrs gSa rFkk vkWijs'ku ds nkSjku ;k i'pkr~ ;fn ejht dks fdlh Hkh izdkj dh ijs'kkuh gksrh gS rks mldh laiw.kZ ftEesnkjh gekjh Loa; dh gksxh u dh MkWDVj lkgc dh ;k vLirky ds fdlh vU; deZpkjh dh A"
29. The complainant has filed document Annexure A-48, which is Consent Letter given by Baraturam to Heritage Hospital, Raiapur in which it is mentioned thus :-
// 48 // eSa [kqn ij@ mijksDr is'ksUV dh 'kY;fdz;k@mipkj@tkap@iM+rky@nokbZ;ka@mipkj i}fr ds fy, viuh lgefr iznku djrk gWaw& 1- bl vkS"k/khipkj@'kY;fdz;k@¼vkWijs'ku½ tkap&iM+rky@ vusLFksf'k;k mipkj i}fr dh vko';drk] u djus ls gksus okys ifj.kke] 'kY;fdz;k ds vfrfjDr vU; mipkjksa ds [krjs vkSj leL;kvksa vkfn ds ckjs esa MkWDVj- Dr. Sanjay and Dr. A. Memon-us eq>s iw.kZ :i ls le>k fn;k gSA 2- eq>s Li"V :Ik ls ;g tkudkjh nh xbZ gS] dksbZ Hkh vkS"k/khipkj@'kY;fdz;k ¼vkWijs'ku½ tkap&iM+rky@ vusLFksf'k;k mipkj i}fr iw.kZr% lqjf{kr ugha gksrh rFkk muds iz;ksx ls ejht dh tku dks Hkh [krjk gks ldrk gSA 3- bl vkS"kf/kipkj@'kY;fdz;k ¼vkWijs'ku½ tkap&iM+rky@vusLFksf'k;k mipkj i}fr ds nkSjku vR;f/kd jDrJko] lalxZtU;rk] g`n; dh xfr :duk ;k QsQM+ksa esa jDr xqByh dk vVd tkuk] bl rjg ds ;k vU; [krjs Hkh vdfYir@vkdfLed :i ls fuekZ.k gks ldrs gSa] bu laHkkoukvksa ls Hkh eq>s MkWDVjksa us voxr djk;k gSA 4- nok nsrs le;@tkap&iM+rky ;k vkWijs'ku ds oDr@ mipkj i}fr ds nkSjku MkWDVjksa dks fLFkfr ds vuq:Ik vkWijs'ku // 49 // @vusLFksf'k;k esa ifjorZu djuk ;fn vko';d gks x;k rks] ;k 'kjhj ds fdlh jksxxzLr vo;o Hkh fudkyuk gks] rks bu ifjorZuksa ds fy, eSa lgefr nsrk gWaWwA bu laHkkoukvksa dh tkudkjh eq>s nh xbZ gSA 5- vkS"k/khipkj @'kY;fdz;k ¼vkWijs'ku½ tkap&iM+rky@vusLFksf'k;k ;k mipkj i}fr ds nkSjku@i'pkr~ visf{kr ykHk ds ctk; gkfu Hkh gks ldrh gS] ;k [krjk@vU; rdyhQsa Hkh iSnk gks ldrh gSA mnkgj.kkFkZ ....(not readable).. ,slh fLFkfr esa mUgsa nwj djus ds fy, 'kY;fdz;krK@MkWDVj ....(not readable)..
vusLFksf'k;krK@MkWDVj ....(not readable).. vko';d lko/kkuh cjrsaxs ;k vU; rK MkWDVjksa dh lgk;rk@foe'kZ ysaxsA bl ckr dk eq>s iwjk Hkjkslk gS vkSj blesa esjh lgefr Hkh gSA**
30 The O.P. No.2 has filed document Annexure OP-1 which is consent letter given by Bhavna Mishra to Heritage Hospital, in which it is mentioned thus :-
eSa [kqn ij@ mijksDr is'ksUV dh 'kY;fdz;k@mipkj@tkap@iM+rky@nokbZ;ka@mipkj i}fr ds fy, viuh lgefr iznku djrk gWaw& // 50 // 1- bl vkS"k/khipkj@'kY;fdz;k@¼vkWijs'ku½ tkap&iM+rky@ vusLFksf'k;k mipkj i}fr dh vko';drk] u djus ls gksus okys ifj.kke] 'kY;fdz;k ds vfrfjDr vU; mipkjksa ds [krjs vkSj leL;kvksa vkfn ds ckjs esa MkWDVj Sanjay Pandey us eq>s iw.kZ :i ls le>k fn;k gSA 2- eq>s Li"V :Ik ls ;g tkudkjh nh xbZ gS] dksbZ Hkh vkS"k/khipkj@'kY;fdz;k ¼vkWijs'ku½ tkap&iM+rky@ vusLFksf'k;k mipkj i}fr iw.kZr% lqjf{kr ugha gksrh rFkk muds iz;ksx ls ejht dh tku dks Hkh [krjk gks ldrk gSA 3- bl vkS"kf/kipkj@'kY;fdz;k ¼vkWijs'ku½ tkap&iM+rky@vusLFksf'k;k mipkj i}fr ds nkSjku vR;f/kd jDrJko] lalxZtU;rk] g`n; dh xfr :duk ;k QsQM+ksa esa jDr xqByh dk vVd tkuk] bl rjg ds ;k vU; [krjs Hkh vdfYir@vkdfLed :i ls fuekZ.k gks ldrs gSa] bu laHkkoukvksa ls Hkh eq>s MkWDVjksa us voxr djk;k gSA 4- nok nsrs le;@tkap&iM+rky ;k vkWijs'ku ds oDr@ mipkj i}fr ds nkSjku MkWDVjksa dks fLFkfr ds vuq:Ik vkWijs'ku @vusLFksf'k;k esa ifjorZu djuk ;fn vko';d gks x;k rks] ;k 'kjhj ds fdlh jksxxzLr vo;o Hkh fudkyuk gks] rks bu ifjorZuksa ds fy, eSa lgefr nsrk gWaWwA bu laHkkoukvksa dh tkudkjh eq>s nh xbZ gSA 5- vkS"k/khipkj @'kY;fdz;k ¼vkWijs'ku½ tkap&iM+rky@vusLFksf'k;k ;k mipkj i}fr ds nkSjku@i'pkr~ visf{kr ykHk ds ctk; gkfu Hkh gks ldrh gS] ;k [krjk@vU; rdyhQsa Hkh iSnk gks ldrh gSA mnkgj.kkFkZ....(not readable)..,slh fLFkfr esa mUgsa nwj // 51 // djus ds fy, 'kY;fdz;krK@MkWDVj ....(not readable).. vusLFksf'k;krK@MkWDVj- ....(not readable).. vko';d lko/kkuh cjrsaxs ;k vU; rK MkWDVjksa dh lgk;rk@foe'kZ ysaxsA bl ckr dk eq>s iwjk Hkjkslk gS vkSj blesa esjh lgefr Hkh gSA**
31. The O.P. No.2 has filed document Annexure OP-21 which is letter dated 15.06.2017 sent by Public Information Officer, District Hospital, Raipur to Mr. Shahnawaz, in which it is mentioned thus :
**mijksDr fo"k;karxZr esa ys[k gS fd ftyk vLirky jk;iqj ls vkidh }kjk pkgh xbZ tkudkjh fuEukuqlkj gS%& iksLV vkWijsfVl ladze.k gksus ij ml ?kko dks 'kY; fdz;k ls vyx fd;k tkrk gS ,oa dYpj ds fy, Hkstk tkrk gSA fjiksVZ ds vuqlkj ,aVhck;ksfVd nok,a nh tkrh gSaA ?kko ds ckj&ckj izNkyu dh t:jr iM+ ldrh gSA reke bZykt ds ckn Hkh ladze.k ds dkcw esa ugha vkus ij gM~Mh ls bEiykaV dks fn;k tkrk gSA vxj ladze.k fQj Hkh csdkcw gks tk; rFkk iSj esa xSaxjhu ds y{k.k fn[kus ok 'kjhj ds vU; vaxksa eas ladze.k dks QSyus ls jksdus ,oa ejht fd tku cpkus gsrq vax dks fudkyk tk ldrk gSA**
32. The O.P. No.2 has filed document Annexure OP-22 which is letter dated 08.06.2017 sent by Public Information Officer, District Hospital, Durg to Mr. Shahnawaz along with information regarding Department of Orthopaedic, in which it is mentioned thus :
// 52 // **mijksDr fo"k; ,oa lanHkZ esa ftyk fpfdRlky; nqxZ esa inLFk vfLFk jksx foHkkxk/;{k MkW- ds- Mh- frokjh }kjk izsf"kr tkudkjh fuEukuqlkj gS%& 1- Yks[k gS fd ftyk fpfdRlky; esa vfLFk jksx fo'ks"kK ds 02 in Lohd`r gSa ftlesa 01 fjDr ,oa 01 esa fo'ks"kK dk;Zjr~ gSA 2- vfLFk jksx fo'ks"kK dh vuqifLFkfr esa foHkkx esa dk;Zjr~ ih- th- ,e- vks- fpfdRlk vf/kdkjh ls dk;Z fy;k tkrk gS ,oa foHkkx esa dksbZ Hkh vfLFk jksx fo'ks"kK ugha gksus dh fLFkfr esa tujy ltZu ¼lftZdy Lis'kfyLV½ dh lsok;sa vko';drkuqlkj yh tkrh gSA**
33. The O.P. No.2 has filed document Annexure OP-23 which is letter dated 15.06.2017 sent by Public Information Officer, District Hospital, Raipur to Mr. Shahnawaz along with information regarding Department of Orthopaedic, in which it is mentioned thus :
**mijksDr fo"k;karxZr esa ys[k gS fd ftyk vLirky jk;iqj ls vkidh }kjk pkgh xbZ tkudkjh fuEukuqlkj gS%& 1- ftyk vLirky jk;iqj esa ,d vfLFk jksx fo'ks"kK ,oa rhu iksLV xzsT;qosV esfMdy vkWfQlj dk;Zjr~ gSaA 2- ;fn lHkh vfLFk jksx fpfdRld ,oa fo'ks"kK vodk'k esa gks rks ftyk fpfdRlky; esa miyC/k tujy lftZdy Lis'kfyLV }kjk okMZ esa HkrhZ bUMksj iksLVvkWijsfVo vkFkksZisfMd ejhtksa dh tkap ,oa bZykt fd;k tkrk gSA**
34. The O.P. No.2 has filed document Annexure OP-24 which is letter dated 08.06.2017 sent by Public Information Officer, District // 53 // Hospital, Durg to Mr. Shahnawaz along with information regarding Department of Orthopaedic, in which it is mentioned thus :
**mijksDr fo"k; ,oa lanHkZ esa ftyk fpfdRlky; nqxZ esa inLFk vfLFk jksx foHkkxk/;{k MkW- ds- Mh- frokjh }kjk izsf"kr tkudkjh fuEukuqlkj gS%& Yks[k gS fd ftyk fpfdRlky; ds vfLFk jksx foHkkx esa o"kZ Hkj yxHkx 250 vkWijs'ku fd;s tkrs gSa ftlesa Vhch;k cksu ds vkWijs'ku lokZf/kd gksrs gSaA vkWijs'ku Ik'pkr~ baQsD'ku gksus ij fuEu izfdz;k viukbZ tkrh gS%& 1- Ikzfrfnu MªsflaxA 2- baQsDVsM ?kko ls il dYpj ,oa lsaflVhfoVh VsLV djk;k tkrk gSA 3- iy dYpj lsaflVhfoVh fjiksVZ ds vuqlkj fo'ks"k ,aVhck;ksfVd nh tkrh gSA 4- vko';drkuqlkj ejht dks iqu% vks- Vh- esa ysdj lftZdy yokt Hkh fd;k tkrk gSA 5- vko';drkuqlkj lacaf/kr CyM tkap ,oa vU;
fo'ks"kKksa dh lykg Hkh yh tkrh gSA**
35 The O.P. No.2 has filed document OP-12 which is literature on Surgical Wound Infection - treatment, in which it is mentioned thus :-
"Causes :
Surgical wounds can become infected by :-
// 54 // Germs that are already on your skin that spread to the surgical wound.
Germs that are inside your body or from the organ on which the surgery was performed.
You are more at risk for a surgical wound infection if you :
Have poorly controlled diabetes.
Have a problems with your immune system.
Are overweight or obese.
Are a smoker Take conticosteroids (for example prednisone).
There are different levels of wound infections :-
Superficial - the infection is in the skin area only.
Deep - the infection goes deeper than the skin into the muscle and tissue.
Organ / Space - the infection is deep and involves the organ and space where you had a surgery.
Antibiotics :
You may be started on antibiotics to treat the surgical wound infection. The length of time you will need to take the antibiotics varies, but will be for at least 1 week. You may be started on IV antibiotics and then changed to pills later. Take all of your antibiotics, even if you feel better.
The pus from your wound may be tested to figure out the best antibiotic.
Invasive Surgical Treatment Sometimes your surgeon needs to do a procedure to clean the wound. They can take care of this either in the operating room or in your hospital room. They will :
Open the wound by removing the stapes or sutures.
// 55 // Do tests of the skin and tissue in the wound to figure out if there is an infection and what kind of antibiotic medicine would work best.
Debride the wound by removing dead or infected tissue in the wound.
Rinse the wound with salt water (saline solution).
Drain the pocket of pus (abscess), if present.
Pack the wound (if it is a hole) with strips of saline - soaked dressing and a bandage.
Wound Care :
Your surgical wound may need to be cleaned and the dressing changed on a regular basis. You may learned to do this yourself, or nurses may do it for you. If you do this yourself, you will :
Remove the old bandage and packing. You can shower to wet the wound, which allows the bandage to come off more easily.
Clean the wound.
Put in new, clean packing material and put on a few bandage.
To help some surgical wounds heal, you may have a wound VAC (Vaccum Assisted Closure) dressing. It increases blood flow in the wound and helps with healing.
This is a negative pressure (Vaccum) dressing.
There is a vaccum pump, a foam piece cut to fit the wound, and a vaccum tube.
A clear dressing is taped on top."
// 56 //
36. The O.P. No.1 and O.P. No.2 have filed Literature on Incident and Risk Factors for Early Surgical Site Infection in Elective Orthopaedic Implant Surgeries and under the Head Original Article, which has been obtained through internet, in which it is mentioned thus :-
"Discussion : of the 624 patients in this study, the overall incidence of surgical site infection was 6.89% similar result was found in study by K.S. Dhillon et al (10) they found infection rate 6.8% while...... Klebsiella was most commonly isolated organism in 39.53% cases followed by E coll in 18.60 caes........ klebsiella is a commensal in the colonic lora. Gram negative bacteria only transiently colonize the oropharynx and skin of health individuals. In contrast, in hospital settings, these bacterial become dominant lora of both mucosal and skin surfacts, particular in association with antimicrobial use, severe illness and extended length of stay. This colonization may lead to subsequent infection."
37. The O.P. No.1 & O.P. No.2 have filed Literature on Injury to the Anterior Tibial System During Percutaneous Plating of a Proximal Tibial Fract, which has been obtained through internet, in which it is mentioned thus :-
"..... Approximately 40 hours later, the patient developed increasing pain and signs of posterior compartment syndrome.
The tourniquet was inflated, and a side - wall injury to the anterior tibial artery and vein existed. Vascular clips were placed proximal and distal to the injury on the artery and vein. After deflation of the tourniquet, the foot was well perfused with a strong palpable posterior tibial pulse but nonpalpable dorasalis sedi pulse...."
// 57 //
38. The O.P. No.1 & O.P. No.2 have filed Literature on impact of Infection on Fracture Fixation, in which it is mentioned thus :-
"Type and timing of prophylactic antibiotics in fracture surgery:
... Recent published series of operative fixation of bicondylar tibial plateau fractures with dual approaches report rates of deep infection requiring operative debridement from 17.6% to 23.6%, in patients with compartment syndrome, the rate was 36.4% and with open fracture the rate of deep infection was 43.8%. Two patients with infection in 1 series ultimately required an above- the knee amputation.
Diagnosis of Surgical Site Infection :
......Blood cultures are useful only in a septic, acutely ill patient.
Advanced...... one half of the cultures are positive....
Implication of Surgical Site Infection for Patient Outcomes :
Surgical site infections after fracture surgery can be devastating for patients who have already suffered a life-altering trauma. Several studies described in this article report the implications of surgical site infection. Patients return to the operating room multiple times, are treated with lon courses of intravenous antibiotic thereby and can suffer amp;utations if the infection cannot be cleared or bone does not heal."
39. The O.P. No.1 & O.P. No.2 have filed Liternature on Outcomes of Surgical site infections in orthopaedic trauma surgeries in tertiary care centre in India, which has been obtained through internet, in which it is mentioned thus :-
"Introduction :-
// 58 // Complications due to ................................... The overall rate of surgical site infection after open reduction and internal fixation of tibial plateau fracture during the 7 years of this study was 7.8% (20 of 256)....
Case definitions A case was ........................... developed purulent discharge at the operation site or purulent discharge with mocrobiologically positive cultures or signs and symptioms of fever along with a significant rise in total leucocyle counts after the surgey along with culture positivity or any sign of inflammation with gaping of incisional site, failed graft / implant with discharge but absence of negative culture and clinical / surgeon's diagnosis of SSI.
For those..................Co-morbidities such as diabetes mellitus, hypertension, renal or liver diseases were also exclusions.
Orthopedic SSI Rates Including definite ................................ cellulitis was 4.4% per operated site. When............ of CDC was 2.6%.
Nature of Isolates:
A total of 46 isolates were obtained. Multidrug resistance (MDR) among Gram-negative bacteria was defined as resistance to three or more ....................................
Management :
Of the 40 SSI Patients (inclusive of cellulities), all were treated within antibiotics, 22 (55%) of who were treated with oral antibiotics only, 16 (40%) with both oral and intravenous antibiotics and two (5%) with intravenous antibiotics only. Out of the 40 patients, 32 (80%) underwent debridement................. Of the total 40 patients, two died during treatment due to complications of SSI (both male)....
// 59 // Gram-negative bacteria like Acinetobacter baumannii Klebsiella pneumona and Paeudomonas acruginosa are found to be the predominant organisms responsible.
The authorse would like to thank the All India Institute of Medical Sciences, India for funding this study."
40. The O.P. No.1 and O.P. No.2 have filed Literature "Can Infection Raise Blood Surgar Levels in Nondiabetics, which has been obtained through internet, in which it is mentioned thus :-
"Infections and Blood Glucose Levels :
When your body is under mental or physical stress, such as when fighting off an infection, hormones such as cortisol are released to help your body cope. The hhormones that are released to fight off the infection might have the side effect of raising your blood sugar levels, so you body has the energy it needs to get better. This effect can happen to both diabetics and nondiabetics."
41. The O.P. No.1 & O.P. No.2 have filed Literature on Infection Following implant surgey, which has been obtained through internet in which it is mentioned thus :-
"Full Tex .... Delection of infection after implant surgery is a daunting diagnosis challenge. No test is 100% sensitive and 100% specific, thus the diagnosis of infection relies on the surgeons's judgment of the clinical presentation.....
Type 1 infections occurred in the immediate postoperative period."
// 60 //
42. The O.P. No.1 & O.P. No.2 have filed Literature on Implant Related Infection in the Tibia - Surgical Revision Strategy with Vancomycin Cement, which has been obtained through internet in which it is mentiond thus :-
"2. Materials and Methods:
Antibiotic therapy was initiated with a cephalosporin. After culture speciments are obtained by means of a bone biopsy or during debridement, a parenteral antimicrobial regimen is begun to cover the clinicall suspected pathogens. Once the organism is identified, the treatment may be modified according to the sensitivity of the isolated microganisms. It lasted four to six weeks, dated from the last major debridement. If the initial medical management fails and the patient is clinically compromises by a recurrent infection, bone and soft tissue debridement is necessary in conjunctin with another four week course of antibiotics."
43. The O.P. No.1 and 2 have filed Literature on Amputation, which has been obtained through internet, in which it is mentioned thus :-
"Why might I need an amputation.
Amputation may also be done for serious infections that do not respond to antibiotics or other treatment..."
44. The O.P. No.1 and O.P. No.2 have filed Literature on Causes of Below Kneep Amputations, which has been obtained thrugh internet in which it is mentioned thus :
"Infections : If infections are untreatable with antibiotics or other remedies, removes of lower limb may be required."
// 61 //
45. According to the complainant, the sample was collected on 05.05.2015 and on the same day report was given as aginst which the O.P. No.4 has specifically pleaded that the sample was taken on 03.05.2015 and after conducting complete test pus culture report was given on 05.05.2015. The O.P. No.3 Dr. Nischal Tiwari has also specifically pleaded that on 03.05.2015, he noticed that the patient was having low grade fever and had some abnormal discharge. He then immediately on 03.05.2015 asked for getting pus culture and sensitivity test done and the same was collected on 03.05.2015. The above contention of the OPs is supported by their affidavits.
46. The main objection of the complainant is that Dr. Sanjay Pandey (O.P. No.2) had left the O.P. No.1 Hospital without deputing competent Orthopedician for taking care of the complainant.
47. The complainant sent questionnaire to the O.P. No.2 Dr. Sanjay Pandey. In reply to question No.12, the O.P. No.2 has stated that "He had asked Dr. Nischal Tiwari (MS) to look after his patient in his absence. Trained dresser / trained orthopaedic technician were deputed for the dressing." The complainant sent questionnaire to O.P. No.3 Dr. Nischal Tiwari. The O.P. No.3 in reply to question No.3 has stated that "He started looking after patient from 01.05.2015 on instructions from Dr. Sanjay Pandey. In reply to question No.5 he stated that "dressing was performed every day on the bed of the patient." In reply to question No.7 O.P. No.3 has stated that "Dressing was done under his instructions and // 62 // in his presence by a trained dresser / trained orthopaedic technician with sterile material along with antiseptic solution and ointment. It is denied that the dressing used to be done carelessly." In reply to question No.14, he specifically stated that " He is competent enough to look after post operative wound and he has done MS in General Surgery." In reply to question No.15 he stated that "the patient has not made any complaint with regard to absence of movement, pus discharge or blackening of part of leg.
48. The complainant has also sent questionnaire to Dr. Sachin Mall. In reply to question No.9 he stated that "The preliminary examination of the patient done by me at the time admission it is found that the condition of the leg was not normal and there was infection in leg, the muscle was necroze and implant plate was looking outside." In reply to question N..14 DR. Sachin Mall has stated that at the time of admission no assurance was given to the effect that the leg of the patient would be saved. It is admitted that from our side the complainant was explained regarding the present condition of his leg. No negligence was committed during treatment. The nature of the injuries of the complaint was of hightly serious nature. The effort was made to save his leg, but the muscles of the leg of the patient was badly damaged and his flow of blood was not clinically fill. According to the Doppler report the flow of blood was less and the patient was diabetic. To stop the spreading of infection in whole body of the patient and to save the life of the patient, // 63 // the decision to ampute the leg was taken after explaining the same to the patient and after obtaining written consent of his family members. All doctor want that the leg of their patient would be saved and he will go from hospital after become healthy. The saving of the leg depende on the nature of injury, its effect i.e. damages of muscles, low blood pressur and other diseases of the patient i.e. diabetes.
49. The O.P. No.1 Dr. Sanjay Pandey specifically stated that he asked Dr. Nischal Tiwari (O.P. No.3) to look after his patient in his absence. Trained Dresser / train orthopaedic technician were deputed for the dressing. The O.P.3 Dr. Nischal Tiwari also stated that he started looking after patient from 01.05.2015 on instructions from Dr. Sanjay Pandey. Dr. Kishore Jha, Neuro Surgeon has also stated in his affidavit that no negligence was committed in treatment of the complainant.
50. The Expert Report was sought by this Commission from Dr. B.R. Ambedkar Memorial Hospital, Raipur and the report was sent by Medical Board consists of Dr. S. Phuljhele, Professor and HOD, Orthopedics, Pt. J.N.M. Medical College and Dr. B.R.A.M. Hospital, Raipur as Chairman, Dr. V.K. Jain, ,Professor Orthopedics, Pt. J.N.M. Medical College and B.R.A.M. Hospital, Raipur, as Member, and Dr. Rajendra Ahire, Associate Professor, Orthopedics, Pt. J.N.M. Medical College and Dr. B.R.A.M. Hospital, Raipur as member In the Expert Report dated 09.11.2017, it is mentioned thus : "
// 64 // "fo'ks"kK er & 1- ejht vjfoan Hkkj}ktdks mPp rhozrk ls gksus okyk ck;sa ?kqVus dh fupyh gM~Mh dk QzsDpj Fkk A (Lt. side Bicondylar fracture of proximal Tibia due to RTA).
2- bl rjg dh pksV ls vkWijs'ku ds ckn fofHkUu rjg dh tfVyrk,a (complications) vk ldrh gS] fofHkUu fjiksVksZa esa infection dh laHkkouk 10 izfr'kr ls 90 izfr'kr rd crkbZ xbZ gS A 3- bl rjg ds infection ds ckn dbZ rjg ls bykt ¼t:jr vuqlkj ½ fd;k tk ldrk gS A"
4- Infection Bhd u gksus dh n'kk esa ?kqVus ds tksM+ksa dks [kRe fd;k tkuk (Arthodesis) ;k ?kqVus ds mij ls vyx (Amputation) fd;k tkuk Hkh ,d bykt ekuk x;k gS A"
51. The Medical Board gave their opinion that the Patient Arvind Bhardwaj was having Lt. side Bicondylar fracture of proximal Tibia due to RTA and in this type of injury, after operation various types of complications can occur. In various reports, there is possibility of infection of 10 to 90% and if infection is not cured, then amputation is essential and it is line of treatment.
52. Looking to the above report, medical treatment papers and affidavits given by the doctors, the complainant has not been able to // 65 // prove that the O.P. No.3 is not competent to treat him and he was not deputed by the O.P. No.2 treat the complainant. Looking to the facts and pleading of the O.P. No.1 to O.P. No3 and medical papers, it appears that the O.P. No.2 Dr. Sanjay Pandey deputed the O.P. No.3 Dr. Nischal Tiwari for treating the complainant.
53. In Vimla Rana Vs Mahesh Hospital and Ors. 2018 (1) CPR 353 (NC), Hon'ble National Commission has observed thus :-
"Consumer Protection Act, 1986 - Medical Negligence - Complainant's daughter was critical and hospitalised at Mahesh Hospital due to pain in abdomen for several days - Blood Pressure could not be recorded and she shivered - Following ultrasound adnexal mass found in right portion of adnexa - Tuberculosis in intestine along with severe perforations detected, and patient was shifted to LNJP hospital where she died after sixteen days - Complainant alleges Mahesh Hospital was negligent, and had operated on stomach of deceased without consent of her relatives -
Seeks compensation to the tune of one crore - Defence point out that deceased had been unwell for past few months - Complainant gas been unable to prove his allegations - No evidence to show that hospital did not have an ICU - No case of negligence made out against th hospital -
Complaint dismissed without costs."
54. In Dr. M. Kochar Vs. Ispita Seal and Anr. 2018 (1) CPR 507 (NC), Hon'ble National Commission has observed thus :-
// 66 // "Consumer Protection Act, 1986 - Medical Negligence - Patients right fallopian tube had to be removed in 1990 owing to an ectopic pregnancy, but she was told that she could still conceive - Second pregnancy was also ectopic, and for the remaining few years she kept taking infertility treatment - OP then recommended IVF as the only alternative - On the day of tests she was handled only by staff members and even the documents did not bear OP's sign - Husband's semen est report was fine
- Procedure was to be performed by the OP, who on the date of IVF told her that she had developed an infection - Complainant alleges extreme stress caused by the whole experience, and further alleged that OP had insisted on performing ET despite the certainty of failure - Complainant thus seeks compensation for negligence of OP and a refund - IVF in itself has a low rate of success which only gets lower as a woman gets older -
OP had used the right procedure for IVF - No case of negligence made out."
55. In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a // 67 // right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........."
56. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference.
To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional // 68 // negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
(3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
// 69 // III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
// 70 // VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
57. In Jacob Mathew (Dr.) Vs. State of Punjab & Anr. III (2005) CPJ 9 (SC), Hon'ble Supreme Court has observed thus :-
"26. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which // 71 // involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a-days is to obtain the consent of the patient or of the person incharge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
49. We sum up our conclusions as under :-
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three : 'duty', 'breach'' and 'resulting damage''.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of // 72 // that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings : either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."
// 73 //
58. In Pally Srikanth & Ors. Vs. M/s. Krishna Institute of Medical Sciences Ltd. & Ors., 2016 (4) CPR 46 (NC), Hon'ble National Commission has observed that "Onus of proving alleged negligence in treatment of a patient lies with person alleging medical negligence."
59. In Prayag Hospital & Research Center Pvt. Ltd. & Anr. Vs. Vijay Pal 2016 (2) CPR 2 (NC); Hon'ble National Commission has observed that "complainants must provide materials to prove allegation of medical negligence."
60. In Ashok Kumar Pathak Vs. Dr. Swarnava Roy and Anr. 2017 (1) CPR 251 (NC); Hon'ble National Commission has observed that "Medical Negligence must be proved by expert opinion."
61. Looking to the documents filed by the O.P. No.2, it is established that the lian of treatment given by the O.P. No.1, is similar to the treatment given by the O.P. No.5 Shri Balaji Hospital, Raipur. If the doctor treated the patient according to the norms and guidelines prescribed in the literature and the treating doctor take reasonable care and also post operative care of the patient and patient is not cured, then the treating doctor is not liable for the injury and merely the patient was not cured by the treatment, it cannot be held that the treating doctor committed medical negligence.
62. In the instant case, looking to the literature produced by the O.P. No.1 & O.P. No.2, sometimes surgeon needs to be a procedure to clean the wound and for that purpose open the wound by removing the stapes // 74 // or sutures, drain the pocket of puse (abscess), if present. In the instant case, the treating doctor treated the complainant according to the medical literature and any unfortunate act was occurred, then the treating doctor cannot be blamed for that. The facts of the judgments cited by the complainant are quite distinguishable from the facts of the instant case, and are not helpful to the complainant.
63. According to the complainant, the O.P. No.2 left the complainant unattended. The above contention is not acceptable. The O.P.2 Dr. Sanjay Pandey, deputed the O.P. No.3 Dr. Nischal Tiwari, who is also a Surgeon and is competent to treat the complainant. The O.P. No.3 had regularly inspected the wound of the complainant and dressing was done. Therefore, the complainant has not succeeded to prove that the OPs have committed any medical negligence, hence the complainant is not entitled to get any compensation from the OPs.
64. Therefore, the complaint filed by the complainant against OPs, is liable to be dismissed, hence the same is dismissed. Parties shall bear their own costs.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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